Madras High Court
P. Ravichandran vs The Government Of Tamil Nadu on 14 September, 2011
Author: Vinod K. Sharma
Bench: Vinod K. Sharma
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 14/09/2011
Coram
THE HONOURABLE MR. JUSTICE VINOD K. SHARMA
Writ Petition (MD) No.3432 of 2008
P. Ravichandran,
S/o. Periannan,
aged about 46 years,
residing at No.19,
East Chithra Street,
Srirangam,
Tiruchchirapalli - 620 006. ...... Petitioner
Vs
1. The Government of Tamil Nadu,
represented by its Secretary to
Ministry of Local Administration,
Chepauk, Chennai.
2. The Tiruchirapalli City Municipal Corporation,
Rep. by its Commissioner,
Tiruchchirapalli - 1.
3. Tamil Nadu Water Supply and Drainage Board,
Rep. by its Executive Engineer,
Tiruchchirapalli - 1.
4. Subaya Construction Company Limited,
No.21, Sowndara Pandiyan Street,
Ashok Nagar, Chennai - 600 083.
5. P & C Construction Private Limited,
No.140, Perundhurai Road,
Erode - 638 011. ...... Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Mandamus, to direct the respondents to pay
Rs.25,00,000/- (Rupees Twenty Five Lakhs only) towards compensation to the
petitioner.
!For Petitioner ... Ms. U. Nirmala Rani
^For Respondents... Ms. S. Bharathi for R-1
Government Advocate
Mr. P. Srinivas for R-2
Mr. M. Ajmal Khan for R-3
Mr. B. Natarajan for R-4 and R-5
- - - - - - - -
:ORDER
The petitioner was serving, as Conductor, in the Tamil Nadu State Transport Corporation Limited (Kumbakonam Division), at Musiri.
2. The petitioner claims, to be an ardent devotee of Vadapathra Kaliamman, and visiting the temple situated, at a distance of 400 metres from his house twice a week. On 20.04.2007, at about 08.00 p.m., the petitioner was proceeding to Vadapathra Kaliyamman Temple, from his house on his bicycle in North Adayavalanjan Street in Srirangam i.e., East - West Road. The road was dug in the centre, for carrying out underground drainage work, and the sand excavated from the earth, was heaped on both sides of the road. The road measures about 15 feet in width, and the pit was about 10 feet x 10 feet with depth of 15 feet.
3. The sand / mud excavated was heaped on both the sides of the road, blocking the southern side completely, whereas the Northern side was also blocked in similar fashion, but leaving a path of 2 feet adjacent, to the pit, so as to enable the passers by, to use the path.
4. The petitioner, got down near the pit from his bicycle, and while passing near the pit, the sand heaved on the Northern side of the pit slipped, which resulted in loss of balance, and falling of petitioner in the pit.
5. The case of the petitioner, is that no warning signs or a board was kept, indicating the existence of a dangerous open pit, nor the usage of the road was closed for traffic. That there was no light exposing the graining of the pit, nor the pit was illuminated, to indicate its depth. On hearing of the screams, the residents of locality, came to the help of the petitioner, and it was only with the help of two ladders, that the petitioner could be brought out of the pit.
6. On account of fall, the petitioner suffered a severe blow to the spinal cord. Several surgeries were performed on the spinal cord, and disc area of the petitioner, but he could not be restored to normal life, having been paralysed.
7. The petitioner submits, that he suffered the injuries solely due to the negligent handling of massive earth excavation work by the respondents, without due care and caution.
8. It is also the case of the petitioner, that the pit was not covered or blocked, by any material, to avoid any accidental fall / slip, by the users of the road. The petitioner lodged a police complaint, it was thereafter, that the respondents 2 to 5 cleared, the sand heaped on the Northern side of the road, and also created obstacles / barriers, by heaping bricks on the Southern side, and paved out a larger way for the commuters.
9. In the injury, the petitioner's lower trunk is completely paralyzed, and he is unable to stand or walk, and is unable to move out of the bed without the help of others. The petitioner has no sensation below his hip, and he cannot know about excreting his waste. He has also to use permanent catheter to pass urine, which results in frequent infections. The petitioner suffered 100% disability, which forced the petitioner, to get voluntary retirement from the Department, though the petitioner is the sole bread winner of the family. Petitioner has spent more than Rs.2,00,000/- (Rupees Two Lakhs only) for treatment, and has been advised to avail the services of two attenders, permanently.
10. It is pleaded case of the petitioner, that the accident is attributable to the negligence of the respondent Nos.4 and 5, and respondent Nos.2 and 3, for not taking effective steps, to monitor the safety measures, required to be adopted by the contractors. It is the statutory obligation of the City Municipal Corporation under Section 261 of the City Municipal Corporation Act, to take adequate precautionary measures. That the respondents also violated Section 329 of the City Municipal Corporation Act, by not covering the pit, and taking other precautionary statutory measures.
11. On the pleadings referred to above, the petitioner prays for grant of Damages of Rs.25,00,000/- (Rupees Twenty Five Lakhs only) on account to financial loss, permanent disability and pain and suffering.
12. The writ petition is opposed by the respondents, by raising a preliminary objection, regarding the maintainability of the writ petition, on the ground, that the petitioner raises disputed questions of fact, which can only be proved, by leading evidence, therefore, the writ petition is not competent.
13. The second respondent in the counter affidavit, has taken a stand that the claim of Damages involves a roving enquiry into the disputed questions of facts, which cannot be adjudicated in writ jurisdiction under Article 226 of the Constitution of India, as the remedy to claim Damages will lie only before the Civil Court.
14. It is submitted by the second respondent, that the work to lay "under ground drainage pipes" was handed over, to the third respondent i.e., Tamil Nadu Water Supply and Drainage Board, and after completion, it was handed over for maintenance, to the second respondent. It is admitted, that the project commenced in the year 2003, and was completed in the year 2008, within the jurisdiction of the respondent Corporation.
15. It is also the stand in the counter, that notice received from the counsel of the petitioner was replied, wherein it was stated, that the second respondent was not executing the work, and was being executed by the third respondent, through respondent Nos.4 and 5, and the petitioner was directed, to approach them for compensation.
16. It is further case of the second respondent, that on enquiry, it was revealed, that the petitioner had fallen in the pit, due to his own negligence, while trying to take his bicycle through the one feet passage, which was left for workmen of the fourth respondent, for carrying on the work, and that there were sufficient number of caution boards at the entrance of the North Adayavelanjan Street, and the Barricades were also placed around the pit hole, to prevent public from using the street. The Contractor, in his reply to the legal notice, had taken a stand, that passage was for use of residents of the area, living on the other side of the road for access to their houses.
17. The third respondent filed a separate counter affidavit, taking similar stand to the one taken by the second respondent i.e., to question the maintainability of the writ petition under Article 226 of the Constitution of India, and that the barricades were placed around the pit hole, to prevent the public from using the Street, and that there was no sufficient space for movement. That sufficient precautionary steps were taken, to ensure that no untoward incident happened. The stand of the third respondent, is also that the accident occurred, due to the negligence of the petitioner himself. The respondent Nos. 4 and 5 chose not to file any counter affidavit.
18. The learned counsel for the respondents challenged the maintainability of the writ under Article 226 of the Constitution of India, on the ground, that the writ petition raises disputed questions of fact regarding the negligence, which cannot be decided under Article 226 of the Constitution of India in exercise of writ jurisdiction.
19. In support of this contention, the learned counsel for the respondents placed reliance on the Judgment of the Hon'ble Supreme Court in SDO. GRID CORPORATION OF ORISSA LTD., AND OTHERS ..VS.. TIMUDU ORAM (2005 (6) S.C.C.
156) wherein the Hon'ble Supreme Court was pleased to lay down as under:-
"6. In Chairman, Grid Corpn. of Orissa Ltd. (GRIDCO) with which case these appeals were listed for hearing but could not be heard for want of service, this Court took the view that the High Court committed an error in entertaining the writ petitions under Article 226 of the Constitution and were not fit cases for exercising the jurisdiction under Article 226 of the Constitution. It was held that actions in tort and negligence were required to be established initially by the claimants. The mere fact that the wire of electric transmission line belonging to the appellants had snapped and the deceased had come into contact with it and died by itself was not sufficient for awarding compensation. The Court was required to examine as to whether the wire had snapped as a result of any negligence on the part of the appellants, as a result of which the deceased had come in contact with the wire. In view of the defence raised and the denial by the appellants in each of the cases, the appellants deserved an opportunity to prove that proper care and precautions were taken in maintaining the transmission line and yet the wires had snapped because of the circumstances beyond their control or unauthorised intervention of third parties. Such disputed questions of fact could not be decided in exercise of jurisdiction under Article 226 of the Constitution. That the High Court could not come to the conclusion that the defence raised by the appellants had been raised only for the sake of it and there was no substance in it. In para 6 it was observed thus:
"6. In our opinion, the High Court committed an error in entertaining the writ petitions even though they were not fit cases for exercising power under Article 226 of the Constitution. The High Court went wrong in proceeding on the basis that as the deaths had taken place because of electrocution as a result of the deceased coming into contact with snapped live wires of the electric transmission lines of the appellants, that 'admittedly/prima facie amounted to negligence on the part of the appellants'. The High Court failed to appreciate that all these cases were actions in tort and negligence was required to be established firstly by the claimants. The mere fact that the wire of the electric transmission line belonging to Appellant 1 had snapped and the deceased had come in contact with it and had died was not by itself sufficient for awarding compensation. It also required to be examined whether the wire had snapped as a result of any negligence of the appellants and under which circumstances the deceased had come in contact with the wire. In view of the specific defences raised by the appellants in each of these cases they deserved an opportunity to prove that proper care and precautions were taken in maintaining the transmission lines and yet the wires had snapped because of circumstances beyond their control or unauthorised intervention of third parties or that the deceased had not died in the manner stated by the petitioners. These questions could not have been decided properly on the basis of affidavits only. It is the settled legal position that where disputed questions of facts are involved a petition under Article 226 of the Constitution is not a proper remedy. The High Court has not and could not have held that the disputes in these cases were raised for the sake of raising them and that there was no substance therein. The High Court should have directed the writ petitioners to approach the civil court as it was done in OJC No. 5229 of 1995."
20. Reliance was also placed on the Judgment of this Court in S.LILLY PUSHPAM ..VS.. THE UNION OF INDIA (2003(4) C.T.C. 168), wherein this Court was pleased to lay down, that the disputed questions of fact, and unequivocal denial of tortuous liability cannot be adjudicated under Article 226 of the Constitution of India, as the proper remedy is the general law remedy.
21. Reliance was thereafter placed on the Judgment of the Hon'ble Supreme Court in CHAIRMAN, GRID CORPORATION OF ORISSA LTD., (GRIDCO) AND OTHERS ..VS.. SUKAMANI DAS (SMT) AND ANOTHER (1999 (7) S.C.C. 298), wherein again the Hon'ble Supreme Court was pleased to lay down as under:-
"The High Court committed an error in entertaining the writ petitions even though they were not fit cases for exercising power under Article 226 of the Constitution. The High Court went wrong in proceeding on the basis that as the deaths had taken place because of electrocution as a result of the deceased coming into contact with snapped live wires of the electric transmission lines of the appellant Grid Corporation. The mere fact that the wire of the electric transmission line belonging to Grid Corporation had snapped and the deceased had come in contact with it and had died was not by itself sufficient for awarding compensation. It also required to be examined whether the wire had snapped as a result of any negligence of the Grid Corporation and under which circumstances the deceased had come in contact with the wire. In view of the specific defences raised by the Grid Corporation in each of these cases it deserved an opportunity to prove that proper care and precautions were taken in maintaining the transmission lines and yet the wires had snapped because of circumstances beyond its control or unauthorised intervention of third parties or that the deceased had not died in the manner stated by the petitioners. These questions could not have been decided properly on the basis of affidavits only. It is the settled legal position that where disputed questions of facts are involved a petition under Article 226 of the Constitution is not a proper remedy. "
22. Reliance was also placed on the judgment of Delhi High Court in ABDUL HAQUE AND OTHERS ..VS.. BSES YAMUNA POWER LTD., AND OTHERS (142 (2007) DLT
526), wherein the Hon'ble Delhi High Court upheld the preliminary objection raised by the respondent, that as the writ claiming compensation involves disputed questions of fact, therefore, the writ under Article 226 of the Constitution was not maintainable, and the petitioners were relegated to ordinary civil remedy. The petitioner was allowed the benefit of Section 14 of the Limitation Act.
23. Similar view was taken by the Hon'ble High Court of Jharkhand at Ranchi in MALTI DEVI ..VS.. THE STATE OF JHARKHAND AND OTHERS (W.P.(C).No.4626 of 2007 decided on 18.02.2009).
24. Learned counsel for the respondents, also opposed the writ petition on the ground, that the liability, if any, was of the Private Contractor, therefore, no writ was competent, as the statutory authorities i.e., Respondent Nos. 1 to 3 could not be held vicariously liable for acts of independent contractor.
25. In support of this contention, the learned counsel for the respondents placed reliance on the Judgment of the Punjab and Haryana High Court in DEVINDER SINGH ..VS.. MANGAL SINGH AND OTHERS (A.I.R. 1981 PUNJAB AND HARYANA
53), wherein it was held as under:-
"16. Once it is held that Jarnail Singh, respondent, was an independent contractor, then it would inevitably follow that the appellant cannot be vicariously saddled with the responsibility for his acts or for the unauthorised use of the vehicle while in his custody by a stranger or an employee of the independent contractor. It is significant that the factual finding herein is that it was not the independent contractor who at the material time was driving truck but a different person, namely, Tara Singh, respondent, who cannot even remotely be deemed to have been authorised by the owner of the vehicle to drive the same.
17. I am not oblivious of the fact that the settled rule that an employer is not liable for the negligence of an independent contractor has some well recognised exceptions. However, the present case of the entrustment of a motor vehicle to a workshop owner cannot possibly be brought within the ambit of any such exceptions. The absolute rule of Ryland ..Vs.. Fletcher cannot possibly be attracted to the case of an ordinary work-a-day chattel like a motor vehicle. Whatever may have been the position of the law a century earlier, it cannot today be held that a motor vehicle is so inherently dangerous and hazardous that even its entrustment to another for repairs, would attract the absolute rule of liability at the onwer's own peril. On the other hand, there appears to be ample authority for the view that a motor vehicle in itself is not a nuisance or a hazardous chattel so as to attract the doctrine of Ryland ..vs.. Fletcher."
26. Reliance was also placed on the Judgment of the Hon'ble Supreme Court in GURU GOVEKAR ..VS.. MISS FILOMENA F. LOBO AND OTHERS (1988 (3) S.C.C.
1), wherein it was held as under:-
" 6. Under the Law of Torts the owner of a motor vehicle is no doubt not liable to pay compensation to any third party who suffers any injury on account of the negligence of the employee of an independent contractor, who has taken the vehicle from the owner for his own (independent contractor's) use.
27. Finally, the reliance was placed on the Judgment of this Court in D.RAJAPATHI ..VS.. THE UNIVERSITY OF MADURAI AND OTHERS (A.I.R. 1980 MADRAS
219), wherein it was held, that the test to be applied to find out whether some one is an agent of another or is an independent contractor, is to find out whether there is any degree of control by the one over the other. In case, there is no control, there can be no vicarious liability.
28. The contention of the learned counsel for the respondents was, that this writ is not competent, as the statutory authorities had no control over the execution of work by the independent contractor.
29. The learned counsel for the petitioner, on the other hand, contended, that the proposition of law canvassed by the learned counsel for the respondents cannot be disputed, nor the Authorities, on which reliance is placed by the learned counsel for the respondents, can be doubted, but, in the facts and circumstances of this case, the contention raised and the authorities relied on have no application.
30. The rule of "res ipsa loquitur" will apply to this case, as the admitted facts, and the circumstances leading to accident leave no manner of doubt, that it was negligence of the respondents, which resulted in the accident. There are no disputed questions of facts, which are required to be determined under Article 226 of the Constitution of India.
31. In support of this contention, the learned counsel for the petitioner placed reliance on the Judgment of the Hon'ble Supreme Court in the case of STATE OF PUNJAB ..VS.. M/S. MODERN CULTIVATORS (A.I.R. 1965 S.C. 17), wherein the Hon'ble Supreme Court was pleased to lay down as under:-
"In an action for damages for inundation of plaintiff's land due to breach of a canal in the management of the defendant, the rule of res ipsa loquitur would apply because canal banks are not breached if those in management take proper care and the breach itself would be prima facie proof of negligence unless the defendant can show that the breach was due to act of god or to act of a third party or any other thing.
The rule in Rylands v. Fletcher shortly stated, is; that any occupier of land who brings or keeps upon it anything likely to do damage if it escapes is bound at his peril to prevent its escape, and is liable for all the direct consequences of its escape, even if he has been guilty of no negligence. Per Salmond Law of Torda 13th Edn., p. 574. The rule in Rylands v. Fletcher was derivatively created from the rule of strict liability applicable to the acts of animals but, it is hardly applicable to a case where damage is caused to adjoining land due to a breach in a canal maintained by the Government. Canal systems are essential to the life of the nation and land that is used as canals, is subjected to an ordinary use and not to an unnatural use on which the rule in Rylands v. Fletcher rests.
The rule laid down in Scott ..Vs.. London and St.Katharins Dock Co., (1865) 159 ER 665 that where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care, has been regarded as the principle of res ipsa loquitur. But the principle, if it be one, cannot always be safely applied where the facts before the court are not the whole facts. The principle of res ipsa loquitur had its origin in the falling of a barrel of flour from a first floor window on a passerby but it has been extended to situations quite different. It is not very much in favour and if applied it must be correctly understood. It is not a principle which dispenses with proof of negligence. Rather it shifts onus from one party to another. It is a rule of evidence and not of liability. A too ready reliance on the maxim reinforce a fault liability and makes it into an absolute liability. If absolute liability is to give way to fault liability, some fault must be established by evidence or must be capable of being reasonably inferred from the circumstances. It is not sufficient to say res ipsa loquitur because the danger is that facts may not always tell the whole story and if there is something withheld how can the thing be said to speak for itself.
The principle may not be applied too liberally. It must also be remembered that what is said in relation to it in one case cannot indiscriminately be applied to another case. It should not be applied as legal rule but only as an aid to an inference when it is reasonable to think that there are no further facts to consider."
32. The learned counsel for the petitioner thereafter placed reliance on the Judgment of the Hon'ble Supreme Court in the case of MUNICIPAL CORPORATION OF DELHI ..VS.. SUBHAGWANTI AND OTHERS (A.I.R. 1966 S.C. 1750), where again, the Hon'ble Supreme Court was pleased to lay down as under:-
"There is a special obligation on the owner of adjoining premises for the safety of the structures which he keeps besides the highway. If these structures fall into disrepair so as to be of potential danger to the passers-by or to be a nuisance, the owner is liable to anyone using the highway who is injured by reason of the disrepair. In such a case it is no defence for the owner to prove that he neither knew nor ought to have known of the danger. In other words, the owner is legally responsible irrespective of whether the damage is caused by a patent or a latent defect.
The normal rule is that it is for the plaintiff to prove negligence and not for the defendant to disprove it. But there is an exception to this rule which applies where the circumstances surrounding the thing which causes the damage are at the material time exclusively under the control or management of the defendant or his servant and the happening is such as does not occur in the ordinary course of things without negligence on the defendant's part.
In the present case, it was found that the Clock Tower which collapsed causing loss of life was exclusively under the ownership and control of the Municipal Corporation or its servants and it was 80 years old. It was also found that having regard to the kind of mortar used, the normal life of the structure of the top storey of the building, could be only 40 or 45 years. There was evidence of the Chief Engineer that the collapse was due to thrust of the arches on the top portion and the mortar was deteriorated to such an extent that it was reduced to powder without any cementing properties. It was also not the case of the appellant that there was any earthquake or storm or any other natural event which was unforeseen and which could have been the cause of the fall of the Clock Tower. In these circumstances, the mere fact that there was fall of the Clock Tower tells its own story in raising an inference of negligence so as to establish a prima facie case against the appellant - Corporation.
Further held that the Corporation was guilty of negligence because of the potential danger of the Clock Tower maintained by its having not been subjected to a careful and systematic inspection which it was the duty of the Corporation to carry out."
33. The learned counsel for the petitioner, thereafter contended, that the negligence implies failure, to exercise due care, expected of a reasonable prudent person. The breach of duty, and negligence in law from inadvertence, to shameful disregard of safety of others, comes within the definition of negligence. In most cases, it is caused by heedlessness or advertence, by which, the negligent party is unaware of the result, which may follow from the acts.
34. The contention of the learned counsel for the petitioner was, that not taking proper care, to heap the sand, and leave a reasonable space, for the people, to move without danger of slipping in the pit, was the case of negligence.
35. It was also the contention of the learned counsel for the petitioner, that the respondents, in reply, to the notice issued by the petitioner did not dispute the factum of negligence, but had only taken a positive stand, that the damages could be claimed from respondent Nos.4 and 5, and not from the Statutory Authority. That the stand taken in the counter, that the petitioner had fallen in the pit due to his own negligence, is an after thought, and not supported by any material, as the respondent Nos.4 and 5 have not filed a counter, to rebut the positive averments made by the petitioner.
36. In support of the plea, that the admitted facts prove the negligence on the part of the respondents, the learned counsel for the petitioner placed reliance on the Judgments of the Hon'ble Supreme Court in SMT. KUMARI ..VS.. STATE OF TAMIL NADU AND OTHERS (A.I.R. 1992 S.C. 2069); M.S.GREWAL AND ANOTHER ..VS.. DEEP CHAND SOOD AND OTHERS (A.I.R. 2001 S.C. 3660); C. CHINNATHAMBI ..VS.. STATE OF TAMIL NADU (A.I.R. 2001 MADRAS 35) and RUTH MARY AND ANOTHER ..VS.. THE COMMISSIONER, CORPORATION OF CHENNAI AND ANOTHER (2004 W.L.R. 176).
37. The learned counsel for the petitioner also contended, that the stand of the respondents, that Respondent Nos.1 to 3 cannot be held vicariously liable cannot be sustained, as the work admittedly was under the supervision of the Statutory Authority i.e., Respondent No.3. It is also the contention of the learned counsel for the petitioner, that the respondents have failed, to place on record the copy of the contract, entered into with the respondent Nos.4 and 5, to show the nature of superintendence of Respondent No.3 over the contract. The work was handled under the supervision of the third respondent, and therefore, the Statutory Authorities cannot wash off its hand with regard to the negligence of Respondent Nos.4 and 5, specially, when there was Statutory obligation on the respondent Nos.2 and 3, to regulate the work. The respondents 4 and 5 were acting as an Agent of respondent Nos.2 and 3.
38. In support, reliance was placed on the Judgment of the Hon'ble Orissa High Court in DHARANIDHAR PANDA ..VS.. STATE OF ORISSA (A.I.R. 2005 ORISSA 36) wherein the Orissa High Court was pleased to lay down as under:-
"6. In the facts of this case, it is on account of the collapse of the pillar and portion of the boundary wall of the school that the two children died. Thus, their death took place due to the breach of the duty of the school authorities to ensure that the school premises in which the children play were safe in all respects. The claim for compensation for death of the two children cannot be resisted on the ground that the children were standing and climbing on the grill gate and were swinging and the pillar of the gate along with the portion of the wall may have collapsed due to pressure because children are prone to play in this manner and it was the duty of the school authorities to ensure that the pillars of the gate and the walls are strong enough to take sure pressure.
7. The next question is whether the State or Orissa can be held liable for the compensation for the death of the children. In the case of M.S.Grewal (Supra), the Supreme Court held that the two teachers for whose neglect the 14 children died in the drowning incident in the river Beas had escroted these students in course of their employment and since on account of their breach of duty in course of employment the fourteen children died, their employer was vicariously liable for compensation. In this case, the death of the two children occurred due to the collapse of the pillar and a portion of the boundary wall of the school due to the breach of duty of the school authorities. In the counter affidavit of the District Inspector of Schools it is, however, stated that it is the Village Education Committee which is responsible for the maintenance of the school building. Since the responsibility of maintenance of the school building has been entrusted to the Village Education Committee by the State Government, the Village Education Committee acts as an agent of the State Government. The State Government is thus vicariously liable for the breach of duties of Village Education Committee to take care of the children by ensuring that the school campus is safe in all respects for the children".
39. The learned counsel for the petitioner also placed reliance on the Judgment of the Hon'ble Supreme Court in STATE OF H.P AND ANOTHER ..VS.. UMED RAM SHARMA AND OTHERS (1986 STPL (LE) 12498 SC), to contend that denial of right to usable road is unconstitutional, which gives enforceable right under Article 226 of the Constitution of India.
40. Reliance was also placed on the Judgment of the Hon'ble Supreme Court in the case of CONSUMER EDUCATION AND RESEARCH CENTRE AND OTHERS ..VS.. UNION OF INDIA AND OTHERS (A.I.R. 1995 S.C. 922), to contend that Right to life under Article 21 of the Constitution of India does not connote mere animal existence or continued drudgery to life, but, includes right to livelihood, better standard of life, hygienic conditions in work place, and leisure and any violation of right under Article 21 of the Constitution of India, therefore, gives remedy for compensation under Article 32 or 226 of the Constitution of India, for enforcement, and protection of fundamental human rights, and therefore, the State is also vicariously liable for the injury suffered by the petitioner, on account of negligence of the respondent.
41. In support of the contention, that the State is liable to pay the compensation under Article 226 of the Constitution of India, the petitioner placed reliance on the Judgments of the Hon'ble Supreme Court in RUDUL SAH ..VS.. STATE OF BIHAR (A.I.R. 1983 S.C. 1086); M.C. MEHTA ..VS.. UNION OF INDIA (A.I.R. 1987 S.C. 1086); D.K.BASU ..VS.. STATE OF WEST BENGAL (1997 S.C.C.(Cri)
92) and CHAIRMAN, RAILWAY BOARD AND OTHER ..VS.. MRS. CHANDRIMA DAS AND OTHERS (A.I.R. 2000 S.C. 988).
42. In support of the contention that the statutory respondents are vicariously liable, the learned counsel for the petitioner placed reliance on Section 261 of the Coimbatore City Municipal Corporation Act, which lays down the precaution to be taken during repair of streets.
43. Section 261 of the Act reads as under:-
"261. Precautions during repair of streets:- (1) The Commissioner shall, so far as is practicable during the construction or repair of any street, drain or premises vested in the Corporation -
(a) cause the same to be fenced and guarded;
(b) take proper precautions against accident by shoring up and protecting the adjoining buildings; and
(c) cause such bars, chains or posts to be fixed across or in any street in which any such work is under execution as are necessary in order to prevent the passage of vehicles or animals and avert danger. (2) The Commissioner shall cause such street, drain or premises to be sufficiently lighted or guarded during the night while under construction or repair;
(3) The Commissioner shall, with all reasonable speed, cause the said work to be completed, the ground to be filled in, the said street, drain, or premises to be repaired and the rubbish occasioned thereby to be removed".
44. Reliance was also placed to Section 329 of the Act, which reads as under:-
"329. Precautions in case of dangerous tanks, wells, hotels, etc., :- (1) If any tank, pond, well, hole, stream, dam, bank or other place be deemed by the Commissioner to be, for want of sufficient repair, protection or enclosure, dangerous to the passers by, or to persons living in the neighbourhood, the commissioner may by notice, require the owner to fill in, remove, repair, protect or enclose the same so as to prevent any danger therefrom.
(2) If immediate action is necessary, the Commissioner may himself, before giving such notice or before the period of notice expires take such temporary measures as he thinks fit to prevent danger and the cost of doing so shall be recoverable from the owner in the manner provided in Section 478."
45. In support of the claim of compensation, the petitioner placed on record the Salary Certificate of the petitioner, as also the Medical Board Certificate showing, that the petitioner was suffering from spinal injury with paraplegia prognosis and therefore, he was permanently unfit for the post, and therefore, leave was not extended.
46. The petitioner has also placed a certificate, issued by the Government, showing the disability and record the Medical expenses incurred.
47. The learned counsel for the petitioner, by placing reliance on the documents, referred to above, contended, that the petitioner was entitled to the compensation prayed for, specially when the petitioner is permanently 100% disabled, and has to be on the bed, for the rest of the life, and incur medical expenses regularly.
48. On consideration, I find force in the contentions raised by the learned counsel for the petitioner.
49. The admitted facts shows, the failure on the part of the respondents, to exercise due care in performance of statutory obligations, under Sections 261 and 329 of the Coimbatore City Municipal Corporation Act. The undisputed facts, further show, that no proper care was taken, to heap the sand and to leave a reasonable passage for people, to move without the danger, slipping in the pit. The factum of negligence stands admitted in the reply to the notice issued by the petitioner, wherein the stand of the Respondent Nos.2 and 3 was, that the petitioner could claim compensation from Respondent No.5.
50. It was only in the writ petition, for the first time, that it was pleaded, that the fall was due to the negligence of the petitioner. This stands belied from the stand of the Contractor, admitting therein, that the passage was left for the use by the resident, for reaching to their houses. In absence of a counter by Respondent Nos.4 and 5, who admittedly executed the contract, the averments made in the writ petition, deserve to be accepted, as the counter affidavit of Respondent No.2, is based on the information, said to have been received from Respondent Nos.4 and 5.
51. In this case, the principle of res ipsa loquitur applies with full force. The stand of the respondents, that specific precautionary measures were taken deserves to be noticed to be rejected, in view of the positive stand taken in the reply to the notice, that the petitioner could claim compensation from the contractor for negligence.
52. The objection, that the writ petition raised disputed question of facts, also cannot be accepted, as no counter was filed to writ by Respondent Nos.4 and 5, and the stand of the respondents 2 and 3 in the counter cannot be accepted, being contrary to the stand, taken in reply to the notice, which was the first version regarding of the incident.
53. The site plan placed on record, shows that the sand was heaved on both sides of the road, and a small passage was left next to the pit for the people, to use without any precautionary danger sign, this leaves no manner of doubt, that the accident had occurred on account of negligence of the respondents, and that the petitioner cannot be blamed or contributed any negligence.
54. The stand of Respondent Nos.2 and 3, that no vicarious liability can be fastened on Respondent No.2 and 3, as the work was being carried out by the Private Contractor, though looks attractive, but when seen in context of the statutory provisions, of the Coimbatore City Municipal Corporation Act, this plea cannot be accepted, as the Contractor will be deemed to be acting under the supervision and direction of the statutory authority. This renders them vicariously liable, for the act of the contractors.
55. For the reasons stated hereinabove, the authorities relied upon by the respondents would not be applicable to the facts of the case, and the authorities relied upon by the petitioner covers the case of the petitioner.
56. In view of the findings referred to above, now the question to be decided is the quantum of compensation, to which the petitioner is entitled to.
57. The evidence on record shows, that the petitioner was aged 45 years and was drawing the salary of Rs.10,253/- (Rupees Ten Thousand Two Hundred and Fifty Three only) rounded off to Rs.10,250/- (Rupees Ten Thousand Two Hundred and Fifty Only). The petitioner suffered 100% disability. Therefore, by borrowing the statutory formula regarding the payment of compensation under the Motor Vehicles Act, the petitioner will be entitled to compensation, amounting to Rs.15,99,000/- (Rupees Fifteen Lakhs and Ninety Nine Thousand only) (Rs.10250 x 12 x 13), which can be rounded off to Rs.16,00,000/- (Rupees Sixteen Lakhs only). In addition thereto, the petitioner is also entitled to compensation, for pain, suffering, mental torture and medical expenses, which are assessed as Rs.2,00,000/- (Rupees Two Lakhs only).
58. The lump sum compensation will take care of the future medical treatment, and attendant care of the petitioner.
59. For the reasons, this writ petition is allowed, and the respondents are directed to pay compensation amounting to Rs.18,00,000/- (Rupees Eighteen Lakhs only) to the petitioner.
60. The liability shall be joint and several. It shall also be open to the statutory authorities, to seek remedies, as per the contract with respondent Nos.4 and 5, for recovery of this amount. In case, the compensation is not paid within three months of receipt of certified copy, the petitioner shall be entitled to interest on this amount, at the rate of 9% per annum, from the date of passing of this order till realisation.
No costs.
Dpn/-
To:
The Secretary to Ministry of Local Administration, Government of Tamil Nadu, Chepauk, Chennai.